Country of Origin Information Agencies as Part of the European Union’s Quest for a Common European Asylum System
Ragnhild Holmen Bjørnsen
Master Thesis at the Department of Political Science
UNIVERSITY OF OSLO
Autumn 2009
Acknowledgements
I would like to thank those who have followed me through the journey it has been to write this thesis.
A warm thank you goes first of all to my supervisor Anton Steen at the Department of Political Science at the University of Oslo. You have been the best of guides along what became a bit of a bumpy road, steering me away from questionable side streets and tempting leaps to keep steady direction. Thank you.
I would like to thank the people at Landinfo and the Documentation and Project
Department of the Danish Immigration Service who kindly welcomed me and answered my questions. Had it not been for your willingness to sacrifice time and effort to deal with a curious student, the subject of this thesis would not have been possible to study.
I want to express my sincerest gratitude to those who have reached out a hand to me during the making of this thesis. To my parents and my brothers, to Dawn, Anne, Mie, Miriam and Jen, you have all helped me in your own way and I will never forget it.
Thank you Leonard Cohen and Nina Simone for your soul food during my breaks.
James, I simply cannot find words to say how grateful I am to you, for standing by me every day, for your encouragement, and for believing in me. I fail.
Ragnhild Holmen Bjørnsen
University of Oslo, October 2009.
(34993 words)
Contents
Acknowledgements………..III Contents………...V Abbreviations……….…..IX
CHAPTER 1. INTRODUCTION……….1
1.1. The Country of Origin Information Agencies in Norway and Denmark………….………..………...…...1
1.2. The Research Question………..………..…...3
1.3. Social and Scientific Justification……….…………...…..4
1.4. Defining Harmonisation………..………...…5
1.5. The Outline of the Thesis………..…….……6
CHAPTER 2. METHODS………7
2.1. Defining Research Design and Method………..……….……..7
2.2. The Benefits of Theory………...………...…...8
2.3. Data Collection and the Goals of Reliability and Validity………...….10
CHAPTER 3. THEORETICAL APPROACH……….13
3.1. New Institutionalism and the Three Roles of the Harmonisation Process….….13 3.1.1. Several New Institutionalist Approaches………...…..14
3.2. Rational Choice New Institutionalism………..…..16
3.2.1. Rational Choice Applied to this Case………...…...17
3.3. Normative New Institutionalism………..18
3.3.1. Normative Institutionalism Applied to this Case……….……19
3.4. Historical New Institutionalism………...20
3.4.1. Historical Institutionalism Applied to this Case……….……….21
3.5. Sociological New Institutionalism……….……...22
3.5.1. Sociological Institutionalism Applied to this Case………..………24
3.6. Summary………...25
CHAPTER 4. THE COUNTRY OF ORIGIN INFORMATION AGENCIES IN THEIR EUROPEAN AND DOMESTIC CONTEXT………..27
4.1. The Steps Towards a Common European Asylum System and the COI Harmonisation Process………27
4.1.1. The Starting Point: the Conventions………...….27
4.1.2. The Schengen Convention, the Dublin Convention, and Eurodac………..28
4.1.3. Schengen Takes its Place in the Treaty of Amsterdam…………...29
4.1.4. Tampere and the Hague Programme: Common Legislation and Towards Several Forms of Practical Cooperation………....30
4.1.5. The Fifth Form of COI Cooperation………...31
4.2. The Two COI Agencies in their Domestic Context………33
4.2.1. Bureaucratic Organization and Institutional Reforms: the Start of the Two COI Offices………...….33
4.2.2. National Legislation………...…..35
4.2.2.1. The National Aliens Acts……….……..35
4.2.2.2. The two Freedom of Information Acts………...38
4.3. Relations to the EU………..………….39
4.3.1. Decision-Making………..39
4.3.2. Approaching Legislation………...………40
4.3.3. The COI Agencies Participate………..………...41
4.4. Summary………...………….42
CHAPTER 5. DATA: THE FACT-FINDING MISSION REPORTS AND THE CIVIL SERVANTS………..43
5.1. Comparing the Reports from the Norwegian and Danish COI Agencies..….….43
5.1.1. Publications in 2007 and 2008……….43
5.1.2. The FFM Reports on Somalia, 2007……….………..….44
5.1.2.1. References……….……...……….44
5.1.2.2. Content………...45
5.1.3. The FFM Reports on Nigeria, 2006………..……….……..46
5.1.3.1. References……….46
5.1.3.2. Content………..47
5.1.4. The FFM Reports on Iraq, 2003………..………48
5.1.4.1. References……….49
5.1.4.2. Content………..49
5.1.5. Summary………..50
5.2. Implications of the Differences in FFM reports………...……..51
5.3. Comparing Interviews from the Norwegian and Danish COI Offices………….53
5.3.1. Freedom Versus Regulations: Who Makes the Decisions?...53
5.3.2. Discussing FFM Reports……….………54
5.3.3. How do We Cooperate?...56
5.3.3.1. Eurasil Meetings………..……….………56
5.3.3.2. Regular Joint FFMs?...………...….58
5.3.3.2. Guidelines………..59
5.3.3.3. The ECS Database……….…61
5.3.3.4. A Joint Support Office in 2010?...61
5.4. Summary………..…………...………...62
CHAPTER 6. ANALYSIS: MATCHING PATTERNS………...64
6.1. Rational Choice Institutionalism………..………...64
6.1.1. Formal Organisation………...………….64
6.1.2. The Logic of Give and Take………66
6.1.3. The Freedom to Change………..……….67
6.1.4. What’s in it For Me?...68
6.2. Normative Institutionalism………..69
6.2.1. Who’s Preferences?...69
6.2.2. Identities, Roles and Matching………..………..70
6.2.3. The Norm of Rationality………..…………71
6.3. Historical Institutionalism………...…………....72
6.3.1. The Value of Traditions………..………….72
6.3.2. The Rational-Legal Order………73
6.3.3. Professionalism and Autonomy………...…………74
6.3.4. Public Insight………...………75
6.3.5. Accountability……….……….…76
6.3.6. Loyalty……….……77
6.3.7. Path-dependency and the Possibility of Change………..……78
6.4. Sociological institutionalism………..………...79
6.4.1. Two Cultures………79
6.4.2. Who are “We”?...80
6.4.2. Do We Agree?...81
6.4.3. Socialisation Efforts from the EU………82
6.4.4. Alternative Signs of Socialisation………82
6.4.5. Copycats………...………84
6.4.6. Harmonisation as Socialisation………84
6.5. What Now?...85
6.5.1. Creative Borrowing………..…85
6.5.2. Joining the Threads……….………...………..……86
CHAPTER 7. CONCLUSION: WHAT IS, AND WHAT IS TO COME………..….91
7.1. The Three Steps of the Research Question……….………91
7.2. Potential Gain “In the Long Run”………...………..……….95
7.3. Further Research………...….……….….96
References……….97
Annex A………..……….102
Annex B………...………103
Annex C………...………104
Abbreviations
COI: Country of Origin Information DIS: Danish Immigration Service
ECS Database: European Country of Origin Sponsorship Project EU: European Union
FFM: Fact-Finding Mission
GDISC: General Directors of Immigration Services Conference Network IAB: Norwegian Immigrations Appeals Board
NAVTIP: Nigerian National Agency for the Prohibition of Trafficking in Persons and Other Matters
NDI: Norwegian Directorate of Immigration NPM: New Public Management
RAB: Danish Refugee Appeals Board
UNHCR: United Nations High Commissioner for Refugees
1.1 The Country of Origin Information Agencies in Norway and Denmark
As this study is taking place, the European Union is striving for a complete
harmonisation of asylum policies for its member states and the remaining Schengen countries. The goal is to establish a ‘Common European Asylum System’ by the year 2010, as was expressed at the meeting in Tampere in October 1999, and again in the Hague Programme of November 2004.1
Taking part in this harmonisation process are the national Country of Origin Information agencies. These are public agencies under the national asylum and immigration
authorities in each EU member and Schengen state. Country of Origin Information (hereafter referred to as COI) is information concerning the humanitarian and security situation in a country that produces asylum seekers, where the EU member and Schengen states find themselves at the receiving end.
The COI offices provide this expertise to the processors of asylum applications with the aim for the latter to have the best possible information at their disposal when deciding upon the outcome of an application. The information generally consists of the security situation for different groups in the country in need of protection, be it political activists, religious or ethnic minorities, women and children, people in need of medical treatment, or other persons facing persecution or life-threatening situations in their country of origin. As this information is crucial to the processing of asylum applications, this
1European Council, 15-16.10.1999. Presidency Conclusions
<www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/00200-r1.en9.htm> [24.10.08];
European Council, 13.12.2004, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union: <http://ec.europa.eu/justice_home/doc_centre/doc/hague_programme_en.pdf> p. 8 [24.10.08]
component in asylum policy is also subjected to European harmonisation as part of the general Common European Asylum System.2
In this master thesis, the EU’s harmonisation process of COI will be studied by looking more closely at two institutions, the Norwegian and Danish COI agencies, to see how they relate to this process. The offices are named “Landinfo” in Norway and “The Documentation and Project Department of the Danish Immigration Service”,
respectively. These two institutions provide information mainly to two ‘users’. The first are the asylum departments of the immigration authorities who process asylum
applications (the Norwegian Directorate of Immigration and the Danish Immigration Service). The second are the national appeals boards (the Norwegian Immigration Appeals Board and the Danish Refugee Appeals Board), where asylum seekers receive a retrial if their application has been rejected.
The main products that these two offices produce have long been Fact Finding Mission reports. The two offices travel on Fact-Finding Missions (hereafter referred to as FFM) to countries of origin where they collect information from their sources. Upon return, the reports are written with the required updated information. A quote from Kim U. Kjær in the article “The Abolition of the Danish de facto Concept” illustrates just how great a role FFM reports can have in the processing of asylum applications:
“On 19 June 2002, the Danish Immigration Service published the long awaited fact- finding report on the situation in Afghanistan following the fall of the Taliban regime.
The contents of the report more than indicate that the processing of these cases, which has now been resumed, will result in a far greater number of refusals than previously – a view officially shared by the Danish authorities.”
Kjær (2003: 269)3
2European Commission, 17.2.2006. New Structures, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System
<http://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0067en01.pdf> p. 5 [15.11.08]
3 Kjær refers to a reply of 5 July 2002 of the Ministry of Integration to question Nr. S 2251 of 24 June 2002 from the Parliamentary Integration Committee.
1.2. The Research Question
The initial question of this student was whether the harmonisation process for COI is actually having its desired effect of making COI reports more harmonised throughout the EU/Schengen area. The result would be that, ultimately, processors would have access to the same COI, thereby assuring the same processing, regardless of which COI agency is consulted. To answer this, one would have to compare reports. Another question was whether it would be possible to predict the likely development of the harmonisation process that will take place in the years to come. The logic of this study is to firstly compare COI reports in order to illustrate the differences that currently exist between reports of COI agencies, so as to, secondly, identify which factors could play a role in shaping the harmonisation process of COI in the EU in future. For reasons of limited resources and restricted access to information, the two above-mentioned COI agencies will be studied together with three sets of FFM reports. The main research questions thereby follow:
1. What are the differences in FFM reports between the Norwegian and Danish COI agencies?
2. What do these differences imply in the context of the EU’s harmonisation process of COI?
3. How are the two COI agencies likely to further cooperate in the EU’s harmonisation process of COI?
In order to answer the third part of the research question, it will be of central importance to identify what factors may intervene in the likelihood of how the two COI agencies will cooperate in the harmonisation process in future. Therefore, the following questions will be answered:
3.a. How are the agencies organised and which procedures are involved in each national COI office to produce the FFM reports?
3.b. What characterises the bureaucratic context and culture to which the national COI offices belong?
3.c. How do the two agencies currently relate to the different components of the EU’s harmonisation process of COI?
3.d. Are there differences between the two agencies in regards to the three questions above?
1.3. Social and Scientific Justification
According to Keohane, King, and Verba, a research question should strive to contribute to collective academic research as well as to answer an important substantial question (1994: 15). This thesis will attempt to contribute to both the scientific and social arenas.
The study has social value because the way the COI offices describe the situations in the countries of origin influences the procedures of processing asylum applications. Norway and Denmark received 6528 and 2225 applications for asylum respectively in 2007, while the combined total for all European member and Schengen states was 222635
applications in the same year.4 Conducting research into how the immigration and asylum authorities in European countries currently function as well as providing further
information on what new tendencies are likely to occur in this field, can help clarify the impacts these policies have for individuals such as asylum seekers, for the societies of origin, and for the receiving ones in Europe.
4Eurostat, Asylum Applications.
<http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&language=en&pcode=tps00021&plugin=
1; NDI, Asylum Applications According to Citizenship 2000-2008.
<http://udi.no/templates/Statistikk.aspx?id=9831> [5.10.09]
This study will make use of new institutional theory. As no comparative research between the two COI agencies in question has yet been done,5 the scientific value of the study could be seen as a small contribution to the vast field of research in this line of theory. Perhaps where the thesis could contribute is within the field of current European studies, as it looks at the meeting point where EU policy touches domestic state policy at the meso-level of public bureaucratic agencies. A broad pool of scientific research uses various forms of new institutional theory to study how national civil servants in public administrations relate to policies and cooperation on a supranational level such as the EU (Aus 2007; Egeberg and Trondal 2007; Gornitzka and Sverdrup 2008). However,
Egeberg claims that there is a great need for more research and empirical findings in this field, because studies conducted on the subject point to contradictory results (1999: 457).
It is towards this expressed need for further research in European studies that this thesis attempts to contribute.
1.4. Defining Harmonisation
In the study that will follow, the harmonisation process of COI has been defined as a handful of forms of cooperation that have been initiated by the EU and that now exist among the COI agencies in the EU member and Schengen states. A more elaborate presentation of the harmonisation process and its components will follow in chapter four.
For now, the five main components will be briefly introduced.
The first form of cooperation that was established in 2002 is the Eurasil expert group network. This is a forum where COI experts from all EU member and Schengen states, accompanied by the UNHCR and other specialist organisations, meet to exchange information on countries of origin.
Another form of cooperation that had its first attempts in 2003 is that of national COI agencies travelling on joint FFMs. This implies delegations from two or more national
5The interviews with the civil servants in the two offices confirmed this statement.
COI agencies travelling together to a country of origin where they jointly meet with information sources and write a FFM report thereafter.
A third type of cooperation is the creation of the ECS Database. It was established in April 2007 as a means of collecting information from COI agencies in the EU/Schengen area so as to improve accessibility of information between experts.
A fourth form of cooperation is the project of creating common guidelines for all the EU and Schengen COI offices. This project has so far resulted in a written document from April 2008, entitled “The Common EU Guidelines for Processing COI”.
Finally, a Joint Support Office is scheduled for 2010 to be responsible for the overall supervision and functioning of COI and other forms of cooperation on asylum in the EU/Schengen area.
1.5. The Outline of the Thesis
Following this introduction, the methodological choices of strategies used to carry out this study are presented and justified in chapter two. In chapter three, four new
institutional theories are presented as alternative approaches to predict the possible likelihood of further cooperation and harmonisation of the two agencies. Chapter four aims to place the two cases in their current European and domestic context. The main empirical findings will be presented in chapter five. Firstly, three sets of FFM reports are compared. Main differences between them will be brought to light, and secondly, what these differences imply in the context of the current COI harmonisation process. Finally, main tendencies are sketched and compared from the results of the interviews with COI experts. Chapter six analyses the data by applying the theoretical propositions from the four new institutional perspectives presented in chapter three, and aims to answer the four underlying questions of the third part of the research question. Finally, conclusions are drawn in chapter seven from the key findings of this thesis.
CHAPTER 2. METHODS
2.1. Defining Research Design and Method
Grounded in the thesis’ qualitative and analytical research question (Grønmo 1996: 80), the study takes the form of a comparative N=2 research design. This implies the need for applying a comparative method as described by Lijphart (1971: 683). Lijphart opposes the comparative method to the experimental, the statistical, and the single N=1 case study methods, and champions the view that where the other methods show disadvantages, the power of causal inference in the comparative small-N method can be both significant and the best option most researchers have in a situation of scarce resources (ibid: 685; Aus 2005: 4-5).
The particular problem this method faces, however, is the situation of having “many variables, small number of cases” (Lijphart 1971: 985). In this study, there are only two cases: the Norwegian and Danish COI agencies. However, a solution to this dilemma that would be suitable for the circumstances of this study would be to choose “comparable cases” (ibid: 687). Further developments of this technique have, amongst others, been that of the ‘most similar’ and ‘most different design’, or a combination of the two (Collier 1993: 112). In the context of this study, a ‘most similar design’ will be used, where one chooses cases that are as similar as possible, which in turn allows for isolation of factors among them that could be responsible for differences of outcome on the dependent variable (Martens 2005: 6).
One reason for the choice of the two cases was that of all the European COI offices, only the Danish, Norwegian, Swedish and British offices were willing to share their COI reports.6 Of these four offices, the Norwegian and Danish agencies were chosen as appropriate because they are fundamentally similar in many respects. On an institutional level, the two agencies have both been known in the European COI context for their FFMs and FFM reports for almost two decades. On a state level, Norway and Denmark are of approximately the same size in population, are parliamentary democracies with established public administrations that have sprung from the centralised-legal state, but have later experienced decentralisation and NPM reforms (ibid: 5). On a cultural level, they are an example of Lijphart’s claim that cases in the same geographical region most often also show signs of similar socio-cultural traits (1971: 689). They are typically characterised as homogenous and welfare state orientated (Christensen 2003: 173-4;
Jørgensen 2007: 377).
Meanwhile, differences remain. Denmark is an old EU member state whereas Norway is linked to the EU through the Schengen aquis and the European Economic Area
agreement. Differences in legislation and public administrative organisation will also prove to be relevant during the comparison of the two cases. Following the ‘most similar’
comparative design, attention will be paid to whether these differences could have an effect on the likelihood of future cooperation of the two agencies in the COI
harmonisation process. Further similarities and differences between the two cases will be elaborated on in chapter four.
2.2. The Benefits of Theory
Another quality to this study is that it is also a theory-interpreting comparative study as opposed to an a-theoretical one because it aims to predict an empirical phenomenon by using established theory (Andersen 1997: 68). This is another solution to the dilemma of
6Other than the above-mentioned offices, the researcher contacted the COI agencies of Belgium, France, Netherlands, Germany, Austria and Switzerland, where the reply was that all COI reports were classified.
This fact is highly relevant to the subject of legislation on freedom of information concerning COI, which will be discussed in later chapters.
many variables, small N. Lijphart suggests to “ […] focus the comparative analysis on the
‘key’ variables” (1972: 690). Following this reasoning, Yin proposes the use of two
‘general analytical strategies’ (1994: 103). The latter suggests this technique for both single- and multiple-case studies (ibid: 14). He explains that in order for the researcher to collect analysable data, there must first be a clear idea of and the possibility to rely on the theoretical propositions that he/she sees as relevant to the study (ibid: 104). This is the first analytical strategy. Yin explains that in this way, the study will use theory as a guideline in order to keep the focus on the research question and give priority to the evidence that best illustrates the case. The dangers of theoretical assumptions, however, is clearly expressed by Allison: “What each analyst sees and judges to be important is not a function of the evidence about what has happened, but also of the ‘conceptual lenses’
through which he looks at the evidence” (1969: 689). In fact, relying on theoretical propositions goes against the ideal of trying to acquire unbiased, objective data to test if our theories correspond with social reality. As a counter to this critique, Yin argues that not only does one need to follow theoretical propositions, but the researcher must also consider “thinking of rival explanations”, which is his second strategy (1994: 108). By according importance to rival explanations before data collection, the researcher can search for evidence that points to alternative conclusions. As Checkel points out in his research on EU socialisation: “given our concern for better integrating diverse analytic traditions, we are thus open to the possible role played by each form of rationality, including the instrumental one (2005: 65).
Following this logic, four theoretical approaches within new institutional theory will be presented in the following chapter, each with a theoretical proposition that is meant to guide the researcher in identifying the essential variables to look for while collecting the data. This, in turn, should make the material analysable in the sense of matching the pattern of the data with that of the propositions (Yin 1994: 106). In applying the method of the two analytical strategies, a separation will be made between the ‘cultural’ new institutional theories that are treated as key theoretical propositions, and the rational- choice perspective that will be considered as the main rival explanation. This separation will be described in detail in the following chapter. The aim is for this theoretical
diversity to help empirically capture the complex relations that could be at the root of how the COI agencies may participate in the harmonisation process in future.
2.3. Data Collection and the Goals of Reliability and Validity
Several types of data have been used for the purpose of responding to the research question, whereof the most important contributions have been the FFM reports from the two agencies and the qualitative interviews. Other essential data include secondary sources that are in electronic form. The nature of this study is such that it deals with current events, and therefore much of the information is only available from websites.
Though one must question the reliability of electronically based sources, the sources that have been used here have been carefully selected following the criteria of authority, accuracy, objectivity, coverage and currency.7 To insure this, all consulted websites that are referred to in this paper come from official sites of national public administrations, including that of government, parliament, ministries and directorates; national official information sites for legislation and public insight; the official information sites of the EU, the Council of Europe and the UNHCR; and press sites from established newspapers that keep an open archive. The type of consulted electronic documents have been
organisational charts, statistics, legal treaties, official communications, research articles, and official documents from the EU that are dated and signed. The student has chosen to place the references to the electronically based sources as footnotes so that the reader may directly consult the links during the course of the thesis. Some primary sources have come from direct communication per telephone or e-mail. These have been with official civil servants, where their names, titles, and departments, as well as the date of the correspondence have been noted. These criteria have been followed in order to insure reliability in the sense that another researcher would find the same results if consulting the same primary and secondary sources.
The first research question requires a comparison of FFM reports between the Norwegian and Danish COI agencies. Three pairs of reports were chosen out of their suitability for
7Susan E. Beck, 27.04.2009. Evaluation Criteria. <http://lib.nmsu.edu/instruction/evalcrit.html> [09.07.08]
the purpose of comparison: they are FFM reports; they focus on the same country of origin; and are written in the same year after a delegation travelled on a FFM. Out of all the products of the two agencies, these were the only reports that fulfilled these three criteria. The three sets of reports were written on the countries of origin Somalia, Iraq and Nigeria. Although the reports on Iraq were written in 2003 before many of the steps of the COI harmonisation process were in place, it is argued that this comparison also contributes to the study by allowing the researcher to see whether there have been any observable changes in resent years. According to Krippendorf, searching for differences between documents can take the form of “identifying patterns that have a high degree of communality within genres, regardless of particular contents” (2004: 50), but also that
“analysts may examine differences in the message content generated by two kinds of communicators” (ibid: 51). A combination of the two methods was applied: identifying patterns and structure without looking at content; and looking at content independently of pattern. Thus, a comparison of each set of reports consisted of identifying similarities and differences on two main points: the number and type of references consulted (primary and secondary sources); and the main structure and content of the reports.
The personal interviews were conducted with four country expert consultants in the Norwegian COI agency. The four consultants were responsible for Somalia, Iraq or Nigeria respectively, and one was responsible for the ECS Database cooperation. In the Danish COI agency, three interviews were conducted: two with country expert
consultants whereof one was responsible for both Somalia and Nigeria and the second for Iraq, and the third interview was with the head of the agency. All the interviews were conducted during September 2008. The interviews were in-depth (Rubin and Rubin 2005:
13) and lasted from one to two hours. The interviewees have been made anonymous for the purpose of this study. An interview guide with main and follow-up questions8 was used in order to assist the student in staying on track (ibid: 147). The questions were open-ended, and probing was used for the purpose of letting the informants elaborate on their arguments and acquiring as extensive information as possible within the timeframe (ibid: 158; 164). The interviews were either recorded or noted down, depending on the
8See Annex A
request of the interviewee. For the purpose of reliability, all seven interviews were transcribed to create a database (Yin 1994: 95).
It is a goal in scientific research to choose the best method for assuring validity when measuring to what extent a research question can be considered explained by a theoretical concept. Adcock and Collier argue that: “measurement is valid when the scores, derived from a given indicator, can meaningfully be interpreted in terms of the systematized concept that the indicator seeks to operationalise” (2001: 531). Applying the terms of these authors to this qualitative research study, the indicators, which operationalise the four theoretical concepts of new institutional theory that will be presented in the
following chapter, were the questions in the interviews. How the interviewees responded to these questions provided the study with the ‘scores’. The interview guide also proved useful in structuring the questions according to the separate theories. The questions were formulated with the aim of collecting as diverse a range of observable theoretical
implications as possible for each theory, thereby improving the scientific quality of the research (Keohane, King, Verba 1994: 12).
The empirical findings that resulted from applying the methods sketched above will be presented in chapter five. First, however, chapter three will provide the theoretical propositions and rival explanations that will guide data collection.
CHAPTER 3. THEORETICAL APPROACH
3.1 New Institutionalism and the Three Roles of the Harmonisation Process
This study seeks to understand the causal complexities that take place at the point of intersection where the supranational governance of the EU touches domestic policy. At this point one finds the domestic civil servants, who carry out national tasks of their public administration, are faced with supranational processes of change, in this case the EU’s harmonisation process of COI. Many scholars have applied new institutional theory in order to identify what takes place within an institution at this point of contact and to predict likely future tendencies from such findings (Johnston 2001; Martens 2005).
Therefore, this line of theories seems fitting also to this study. New institutionalism as an overall theoretical concept will be presented along with its classification into four sub- categories that each represents a new institutionalist theory. Separately, it will be justified how each theory applies to the subject of this study.
When looking at how the theories predict a most likely tendency for future cooperation of the two agencies in the harmonisation process of COI, a distinction will be made in order to highlight three separate roles that the harmonisation process can be perceived to have.
Sjursen uses three categories to distinguish between three ways of how the EU defines itself when studying the EU’s problem of identity in the setting of EU enlargement.
These are: a “pragmatic problem-solving entity, a rights-based post national union, and a value-based community“ (Sjursen 2008: 2). She shows that the EU has used all three of these profiles when justifying the enlargement process. These three categories will also be used in this study to describe how the theories predict cooperation in regards to these three different aspects of the harmonisation process of COI. Applied to this study, if the civil servants perceive the harmonisation process as a practical tool to help them in their work, then one could interpret this as the agencies understanding the harmonisation process as a potentially problem-solving process. The harmonisation of COI, being a
component of the Common European Asylum System, can also be understood as having an aspect of promoting rights that transcend national boarders because it concerns the universal right to seek asylum and “is based on the full and inclusive application of the Geneva Convention.9 Finally, because it can be seen as a joint cooperation between the member states within its borders while defining who of those which are outside its borders are allowed entry and membership, the harmonisation process of COI may be perceived as a component in strengthening the image of the EU as a social community in which its members share a sense of belonging, solidarity, and mutual responsibility. This aspect is emphasised by the European Council, which expressed that the Common European Asylum System: “should be based on solidarity and fair sharing of
responsibility including its financial implications and closer cooperation between the member states.”10 The European Commission states that: “Tackling the management of asylum together as a Community is the raison d’être of the Common European Asylum System.”11
3.1.1 Several New Institutionalist Approaches
As a response to the theoretical trends of behaviouralism and pure rational choice that governed the subject of political science in the 1950s and 1960s, March and Olsen termed the new theoretical movement that was emerging in the 1970s ‘new institutionalism’
(1984: 738). Their main argument can be said to have been that “collective action should be the dominant approach to understanding political life” (Peters 1999: 17), thereby criticizing the behaviouralist view that politics are merely the aggregate of individuals instead of collective behaviour, motivated solely on the grounds of maximizing self- interest. They claimed that the latter’s perception was reductionist and utilitarianist as well as too contextual, functionalist, and instrumentalist (1984: 735-738).
9European Council, 13.12.2004. The Hague Programme: Strengthening Freedom, Security and Justice in the European Union <http://ec.europa.eu/justice_home/doc_centre/doc/hague_programme_en.pdf> p. 8 [12.10.08]
10 ibid
11 European Commission, 17.2.2006. New Structures, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System
<http://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0067en01.pdf> p. 2 [15.11.08]
A number of different approaches to institutions have emerged in the last decades since March and Olsen assembled and developed the new institutionalist theoretical perspective in the 1980s, some deviating more from March and Olsen than others. All classifications and categorisations of theories are necessarily artificial to some degree. Therefore, although there is a general understanding that new institutionalist approaches diverge, there seems to be a certain disagreement as to how to separate them. Scott separates the new institutionalists into three pillars based on which part of the institution they accord most weight (1995: 35). He calls these pillars the normative, cognitive, and the regulative pillars. The normative pillar seems to correspond to Peters’ (1999) normative and
historical new institutionalism, where norms and values are at the centre of the analysis.
Peters argues that historical institutionalism could be treated simply as an under-category of normative institutionalism, with a special interest in history (1999: 75). However, here the approach, along with its main characteristics, will be presented on its own, as both Peters (1999: 63) and Hall and Taylor (1996: 937) do. Scott’s cognitive pillar emphasizes culture as a shared social reality. This is in line with Peters’ sociological institutionalism.
Hall and Taylor, on the other hand, make a somewhat different distinction. Indeed, Peters argues that: “Hall and Taylor, in fact, refer somewhat incorrectly to the March and Olsen version of institutionalism as sociological institutionalism” (1999: 98). When it comes to the regulative pillar, however, there seems to be more agreement as to this being the most moderate of the new institutional approaches, represented by the rational choice version of new institutionalism (Peters 1999; Hall and Taylor 1996).
A distinction influenced by these three contributions of scholars will be made to present the four theoretical approaches that follow. First, the new rational choice institutionalist approach will be presented, which is said to build upon the basic assumptions of the pedigree rational choice model. Then follows the three approaches that seem more closely related: the normative, sociological, and historical new institutionalist perspectives.
3.2. Rational Choice New Institutionalism
Peters suggests that the term ‘rational choice institutionalism’ may seem contradictory (1999: 43). Given that conventional rational choice theorists analysed politics from a basis in individualistic behaviour, they did not accord importance to the institutions in political life. The new rational choice institutionalists, although sharing this basic individualistic perception, acknowledge that institutions matter and that most behaviour takes place within an institutional context.
These scholars look at formal and informal rules, contracts, enforcement, and sanctions, which constitute the institutional context that constrains behaviour. They tend to study actors in a competitive situation, such as the marked where interests are conflicting, and where rules are necessary to regulate and control behaviour (Scott 1995: 36). A way to obtain control is through coercion and laws, executed from a third party. Here is where rational choice institutionalists see the need and the role of the state and of governance (ibid).
Rational choice institutionalists believe that the individual is rational, but that this
rationality is ‘bounded’ in the sense that institutions constrain the possible alternatives of individual choices. Still, this is the new institutional theory in which “individuals are the central actors in the political process” (Peters 1999: 46). Preferences are seen to be exogenous to the institution and are taken as given, natural, universal, and utilitarian because all individuals seek to maximise self-interest, such as power, status and economic benefit. The theory sees the individual as calculating, so that while taking a decision, one evaluates the multiple alternatives and their consequences in a cost versus benefit logic. This is why March and Olsen name this perspective ‘the logic of
consequentiality’ (Christensen and Røvik 1999: 160). Yet it is acknowledged that individuals, in certain situations, may benefit from an institutional framework. This is because their competitors are also constrained. Institutions therefore serve instrumentally as ‘tools’ for individuals to reach their private goals. They provide stability and ‘the rules of the game’ that can diminish transaction costs for all participants. Therefore, actors may
have an incentive to join an institution, interacting strategically so that the institution can serve the actor’s individual interests.
Through this logic, rational choice institutionalists show how rational individual action can lead to collective rationality (Peters 1999: 45). The ‘game theorists’ of this approach call this a state of ‘equilibrium’, where the players, by following the rules, reach their best possible outcome. Institutions are perceived to be consciously designed to produce favourable outcomes for the actors. Furthermore, these designs can be easily altered to fit changes in the environment, in information, and in their desired goals. According to this perspective, the past history of the institution is of little importance. The designs are in fact perceived to be “formed on a tabula rasa” (ibid: 47). This stands in sharp contrast to the historical institutionalist perspective, which is presented later in this chapter.
3.2.1 Rational Choice Applied to this Case.
When using this theory to study how the two COI offices relate to the EU’s initiative to harmonise COI, one could suggest that the civil servants will prove to apply a strategic calculation approach to EU cooperation, depending also on the degree of freedom of decision-making they enjoy within the institutional framework of formal organisation and procedures. In this sense, rational choice theory suggests that the civil servants perceive the role of the EU as a problem-solver (Sjursen 2008: 2). This could explain two trends.
On the one hand, their COI reports could become more harmonised according to EU standards because it seems in fact beneficial for the actors to cooperate at the EU
supranational level. On the other hand, if adaptation to EU standards seems unbeneficial, the bureaucrats may choose not to focus on cooperation. Rational choice theory suggests that the process of changing the design of the institution according to changes of the incentives from the environment is likely and poses no considerable problems to the designers. Therefore, the first theoretical proposition is the following:
The Norwegian and Danish COI institutions will be in favour of the
harmonisation process if the civil servants are of the opinion that it is beneficial for them to cooperate. This alteration can take place rapidly and easily. If they feel that it is not beneficial, they will be reluctant to further cooperation.
3.3. Normative New Institutionalism
March and Olsen were the fathers of this approach (Peters 1999: 25). They stressed the importance of norms and values in institutions, and that these institutions shape
individual behaviour. Scott defines values as that which is desired, and norms as the means of how to achieve these preferred goals by specifying what should be done and how (1995: 37). Yet March and Olsen (1984) were not the first ones to claim the importance of values in an institution. Amongst others, March and Olsen were highly influenced by sociologists such as Selznick, who in 1957 argued that an organisation becomes an institution when it is completely infused by values (Selznick 1997: 41). It evolves from being a mere technical tool to becoming, through the process of
institutionalisation, a place of social integration and patterned behaviour (ibid). Thus, normative institutionalists believe that individuals, far from being atomistic, are
‘embedded’ in collective relationships with each other. March and Olsen claimed that individuals act in the manner of a ‘logic of appropriateness’ (Christensen and Røvik 1999: 159). In this logic, they explain that identities are created when individuals follow rules and standard operating procedures that they feel are appropriate to the situations they face. They ‘match’ the appropriate action to a situation in the way that is expected of them. In this sense, the actor’s preferences are said to be endogenous to the institution as a result of socialisation into the latter (ibid: 161). Krasner refers to how individuals’
identities are shaped by the institution as ‘vertical depth’ and claims that these norms leave individuals with a limited number of social values and roles from which they can choose (1988: 73). Similarly, March and Olsen stress that individuals are not puppets to socialisation, but that they “pick and choose” from rules and roles that are available to them (Peters 1999: 26). Also Egeberg explains that normative institutionalism sees
individuals as a collection of roles and identities, and that which of these is awoken depends on the situation (1999: 458).
The logic of appropriateness stands in sharp contrast to the logic of consequentiality described above. The latter is typical for what March and Olsen term the ‘aggregative political process’ (1989: 118). They focus on the opposite pole, seeing the political process through an ‘integrative model’. It stresses that collectives have a common and shared history and future, wherein lay common values and norms that define how the political process should proceed. The norms and values are insured by political rights and reasoned deliberation (March and Olsen 1989: 124). They create “shared preferences […], common cultures, collective identities, belonging, bonds, mutual affection, shared visions, symbols, history, mutual trust, and solidarity” (ibid: 127).
3.3.1 Normative Institutionalism Applied to this Case
There may be two sets of norms and values of interest in this study. One set consists of the domestic norms that characterise each national institution. Some norms and values may seem particularly prominent in each office, giving them a unique character and competence. This could differentiate them from other institutions and might create obstacles to adopting new norms, thereby making the harmonisation process of COI harder to achieve. On the other hand, there are the norms and values which have developed within the EU that might also be strong binding factors to the civil servants who may begin to feel that it is appropriate and expected of them to adopt these norms.
One might detect a change in the collective identity of the bureaucrats that will manifest itself in a willingness to cooperate in the harmonisation process. If this is the situation, the institution would not adapt rapidly to the new environment, but if adopted, the norms and values from the EU institutional level will create a more permanent change than what rational choice theory suggests. In regards to how the civil servants perceive the role of the harmonisation process, this depends on which norms and values are predominant. If the domestic norms and values are dominant and conflicting with those of the EU, there might be scepticism towards what the harmonisation process can achieve. However, if there is a tendency towards adopting the EU’s supranational values, it might be that there
is agreement on the potential for the harmonisation process to promote universal rights to asylum, perhaps even to strengthen the aspect of the EU as a shared community by taking on new identities. Therefore, a second theoretical proposition follows:
Strong domestic norms and values may create resistance amongst the civil servants against the harmonisation process. Yet if the officials show signs of adopting the common norms and values of the EU’s harmonisation initiative, this could suggest that the movement towards further cooperation and harmonisation of COI is a slow but sure one.
3.4. Historical New Institutionalism
Historical institutionalists share the same view as normative institutionalists in that institutions influence individual preferences, and that an institution has a uniqueness resulting from its particular history. Selznick insisted on analysing the institution in a historical perspective. He argued that the past choices that the leaders of the institution make, the “choice of a social basis”, “the formation of an institutional core”, and “the formalising of methods” (1997: 81-84) will persist, resulting in institutional stability and slow evolution, as well as giving the institution its own character, identity and
competence (ibid: 104).
Historical institutionalists insist on the historical contextual circumstances in which ideas were born in the initial development of the institution (Hall and Taylor: 1996: 940). As such, historical institutionalists typically address the persistence of patterns and policies over time within individual countries that amount to cross-national differences. For these scholars, causal analysis is understood as sequence analysis (Thelen 1999: 390), or as Krasner points out, “institutional arrangements are both dependent variable at time t and an independent variable at time t+1” (1988: 72). Krasner explains how institutions persist because they follow a ‘path dependency’, the process by which “pre-existing structures delimit the range of possible options” (1988: 81). He compares this to the biological
‘genetic stock’ which allows us to develop only in a certain way. He refers to routines
e.g. “regular and predictable pattern of behaviour” in institutional theory as the equivalent of genes in evolutionary theory: “a persistent feature of the organism [that] determines its possible behaviour” (ibid 83).
This does not, however, imply that path dependency is static. Thelen argues that, on the contrary, the development is a dynamic process (1999: 391). It starts off at a ‘critical juncture’ in which initial choices, ideas and influences all intertwine in a historical
context to set institutions off on different development paths (ibid: 388). Contrary to what the rational choice institutionalists believe, this original birth of the institution is not seen as the result of conscious, rationalistic design. Rather, it is the product of the “political forces at play at the time of the formation of the institution” (Peters 1999: 72). This path reproduces itself in a process of ‘self-reinforcing positive feedback’ (Krasner 1988: 83).
A result of this process, Krasner argues, is typically that routines become more efficient over time. These routines, however, exclude other routines that might have been better suited for the changing environment. Change is costly, but in the long run, he claims, the cost of path dependency might exceed the cost of change (ibid: 84). Thelen, in turn, warns of the tendency of the approach to be “overly deterministic” by not according enough importance to evolution and change in the institution (1999: 396). She argues that certain changes in the environment can create changes in the institution if the pressures of the environment are significant. However, in order to understand which environmental changes create changes in which institutions, one must direct one’s attention to the particular reproduction mechanisms of the institution in question.
Consequentially, institutional change cannot be separated from the analysis of
institutional stability (ibid: 400). The variation of reproduction processes can explain how international trends can have different domestic outcomes, some more resilient to change and reform than others (ibid: 397).
3.4.1 Historical Institutionalism Applied to this Case
The two COI agencies may prove to have strong domestic principles and guidelines that are firmly sealed into their bureaucratic tradition whereby norms and values have sprung out from the forces that were at work when these bureaucracies were formed. One would
then observe a path dependent development, in which foundational principles are reproduced over time. The actors will then seem to have considerably restricted options when facing changes in the environment. Unless environmental conditions surrounding the institution create such strain that it is faced with a ‘critical juncture’ that will set the institutions off on a new path, change is a problematic and slow process. The firm domestic norms and routines could help to explain lasting differences in the domestic offices when faced with a changing environment such as the EU’s wish to harmonise COI. As for how the role of the harmonisation process is understood, the same applies as for normative institutionalism, but with emphasis on the perception of the civil servants proving to be long lasting and a challenge to alter. The third proposition is thus:
If the two institutions were faced with a critical juncture when the EU’s harmonisation of COI was introduced, this could have set the offices on a new development path, which would materialise in the form of further cooperation and more harmonised COI. If there was no such critical juncture, the COI agencies might refrain from cooperation because the civil servants are embedded in a domestic institution that is so path-dependent of its bureaucratic traditions that any considerable changes towards harmonisation are unlikely or will be slow at best.
3.5. Sociological New Institutionalism
Even though sociological institutionalism shares many common features with that of the normative perspective, especially from its emphasis on culture and socialisation, both Scott (“the cognitive pillar” 1995: 40) and Peters (1999: 97) argue that it deserves its own category. Sociological institutionalists also emerged as a reaction to the rational choice trends of the 1950s and 1960s and are equally inspired by sociologists such as Selznick, who championed the view that frames of meaning come to life through the process of institutionalisation and social interaction (1997: 26). Yet where normative institutionalists ask which behaviour is appropriate to a given situation, Scott recites early cognitive theorists such as Berger and Luckmann (1967) who ask how the individual comes to interpret the situation by his/her understanding of social reality (Scott 1995: 40).
Similarly, Hall and Taylor explain that sociological institutionalists do not focus on what an individual should do as much as ask “what one can imagine oneself doing in a given context” (1996: 948).
Sociological institutionalists are primarily interested in the cognitive aspect of culture in which symbols play an important role as carriers of shared meaning. According to this view, individuals construct social reality “within the context of wider, pre-existing cultural systems: symbolic frameworks, perceived to be both objective and external, that provide orientation and guidance” (Scott 1995: 41). Individuals internalise this
institutional context so that however they understand reality will be taken in a manner that intuitively makes sense to them.
Hall and Taylor suggest that Meyer and Rowan (1991), as well as DiMaggio and Powell (1983), were the founders of the sociological institutionalist tradition in the late 1970s (1996: 947). Sociological institutionalists argue that culture consists of external, macro- level belief systems in society that they refer to as ‘social myths’. Myths are spread and adopted by organisational fields, which often adapt modern and rational organisational forms for reasons of legitimacy rather than efficiency. Myths provide a common definition of social reality, therefore creating similar practices within and between organisations in an isomorphic manner (Meyer and Rowan 1991: 46). Accordingly, where historical institutionalists seek to explain the uniqueness of an institution, the sociological researchers rather ask why there is a high degree of similarity between them.
More precisely, DiMaggio and Powell argue that “highly structured organisational fields provide a context in which individual efforts to deal rationally with uncertainty and constraint often lead, in the aggregate, to homogeneity in structure, culture, and output”
(1983: 147). They present three main forms in which institutional isomorphism takes place between institutions that share the same field. The first is mimetic, a process of imitation where institutions facing uncertainty want to copy the ‘best practice’ of the
‘model’ institutions who appear to be successful, rational, and modern. The second is coercive isomorphism, where institutions in an environment enforce considerable pressure on other institutions so as to create no other alternatives than to conform. This
could come from its dependency on the others or from strong cultural expectations in the field, but also from direct imposition through laws and political decisions. The last type of institutional isomorphism is normatively driven, in which a process of
professionalisation occurs in a field, defined as “the collective struggle of members of an occupation to define the conditions and methods of their work” (ibid: 152). This process can develop through the educational system and professional networking.
Another angle on this theory is to focus on the micro level of the socialisation processes that take place when an actor’s perception of reality is altered. It is suggested that supranational institutions can be seen as social laboratories where one can observe the socialisation of national officials into another institutional level. When confronted with a new institutional culture, new symbols are introduced that carry social meanings and cognitive constructs which, in turn, are internalised by the actors. Johnston quotes Berger and Luchmann’s definition of socialisation as “the comprehensive and consistent
introduction of an individual into the objective world of a society or a sector of it”, and adds “socialisation is aimed at creating membership in a society where the intersubjective understandings of the society become taken for granted” (Johnston 2001: 494).
Furthermore, he specifies that socialisation takes the form of both persuasion and social influence. Johnston recites Berger’s (1995) definition on persuasion: “[it] alters people’s perceptions, attitudes, beliefs and motivations” (ibid: 496). Social influence is understood as a system that provides rewards or punishments in status and merit, depending on the cultural understanding of what is “socially valuable behaviour” (ibid: 501).
3.5.1. Sociological Institutionalism Applied to this Case
DiMaggio and Powell formulate the hypothesis that “the greater the participation of organisational managers in trade and professional associations, the more likely the organisation will be, or will become, like other organisations in its field” (1983: 155).
Applied to this study, one could suppose that participation and cooperation at the EU level could lead to greater institutional isomorphism between the COI agencies, which in this case could also lead to more harmonisation of their products. One might see signs of mimetic, coercive or normative/professional isomorphic processes taking place between
them. Similarly, Johnston argues that the microprocesses of socialisation are more likely to take place when “the actor is exposed to counter attitudinal information repeatedly over time” (2001: 499). The exposure could lead to a more ‘European’ orientation, where goals such as harmonisation of policies, or a sense of a shared European community and future European fate, take precedence over traditional national references and identities.
Here, the harmonisation process for COI could be interpreted as taking the role of a community provider and a rights-promoter in the sense that the civil servants feel a sense of belonging to the EU and agree with the goals and abilities of the harmonisation
process. Yet, Johnston notes that socialisation is less likely if an actor has strongly ingrained former attitudes that conflict with those that are introduced (ibid). This can be interpreted as an obstacle to harmonisation. The fourth proposition is formulated as follows:
The COI of the offices will become more harmonised as a result of isomorphic processes as the civil servants participate in the five forms of cooperation. This participation influences the perception of the bureaucrats who are undergoing a process of socialisation into a supranational institutional culture. However, if domestic socialisation is strong, this can delay and challenge harmonisation.
3.6. Summary
Although the introduction in this overview of new institutionalism questioned whether and how it makes sense to separate the concept into several under-categories of new institutionalist approaches, this presentation of each theory shows differences between them so that it seems justifiable to separate them. Notably the fundamental difference between the rational choice new institutionalism and the other three approaches, where preferences are seen as universal and exogenous as opposed to endogenous and culturally defined, is an important contrast. In this respect, when applied to the topic of this study, the theoretical proposition based on the rational choice approach will be interpreted as a rival explanation (Yin 1994: 108) to the other three. As this chapter has shown, this division can also be justified by how the different theories point to different perceptions
of the COI harmonisation process. It is suggested that rational-choice theory sees the harmonisation process as a potential problem-solver. As for the cultural perspectives, differences appear to lie in what is in focus when an institution is studied: the norms of what is appropriate behaviour; the historical origins and developments; or the cognitive aspect of what can be imagined. These differences, in turn, can contribute to explaining different phenomena of uniqueness or similarity amongst institutions. Accordingly, the cultural theories can also be concerned with other aspects of the harmonisation process of COI, where its abilities as a promoter of universal rights to asylum and its role as a provider of a defined European community are questioned. The theoretical propositions that were formulated here are meant to assist the research during data collection and analysis. Therefore, the following model has been drawn as a guide for the task ahead.12 However, before proceeding to those steps of the research, the European and domestic context to which the two COI agencies belong will be presented in the following chapter.
12 See Annex B
CHAPTER 4. THE COUNTRY OF ORIGIN INFORMATION AGENCIES IN THEIR EUROPEAN AND DOMESTIC CONTEXT
In this chapter, a historical overview of the developments in European asylum policies will be presented in order to identify the main events that have resulted in the COI harmonisation process in which the two COI agencies currently find themselves. In the second part of this chapter, the two national offices will be introduced in more detail within their domestic setting in the Norwegian and Danish bureaucracies and national legislations. Finally, the third part of the chapter will describe the point of contact between these two contexts, down to the level of the two COI agencies.
4.1. The Steps Towards a Common European Asylum System and the COI Harmonisation Process
4.1.1. The Starting Point: the Conventions
The refugee and asylum policies in Europe can be said to have gotten their first written forms in the United Nations Convention relating to the Status of Refugees (the Geneva Convention) of 1951 and in the European Convention of Human Rights and Fundamental Freedoms of 1950.
The Geneva Convention was initially created to protect European refugees in the aftermath of World War II. The Convention clearly defines who is considered to be a refugee. It lays down basic minimum standards for legal protection, assistance, and social rights whom the persecuted should receive from the contracting states, as well as his or her obligations to these host countries. Article 1 defines a refugee as:
" […] a person who is outside his or her country of nationality or habitual residence, has a well founded fear of persecution because of his or her race, religion, nationality, membership of a particular social group or political opinion, and is unable or unwilling to avail himself or herself of the protection of that country, or to return there, for fear of persecution ".13
The 1967 Protocol removed the time and space limitations of the original Convention to create a universal instrument for the problem of displaced persons. 147 countries have signed one or both texts, including all the EU and Schengen member states. This action on behalf of the member states obliges them to respect the principle that refugees should not be returned to a country where they fear persecution: the principle of ‘non-
refoulement’.
The European Council drafted the European Convention of Human Rights. Unlike the UN Convention, it is not solely directed towards asylum issues but to protecting human rights and freedoms in Europe.14 In order to assure the protection of these rights, the Convention established the European Court of Human Rights, created in 1959. Although the original Convention did not stress that European states could not deport individuals to recipient countries where such fundamental rights were not respected, the Court has later ruled that individuals cannot be deported to recipient states where “torture, inhumane or degrading treatment or punishment” is practiced, as expresses Article 3. The Convention includes several protocols that have also proved relevant in the Court’s decisions on asylum issues, such as Protocol 13 that abolishes death penalty without exception. It represents a basic foundation of human rights as all the member states have ratified the Convention.
4.1.2. The Schengen Convention, the Dublin Convention, and Eurodac
The subsequent legal framework that laid the ground for European refugee and asylum
13UNHCR, 1.09.2007. Convention and Protocol Relating to the Status of Refugees
<www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf> [23.07.08]
14Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocol No. 11
<http://conventions.coe.int/treaty/en/Treaties/Html/005.htm> [15.08.08]
